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Qualcomm Attorneys Hit With Multi-Million Dollar Sanctions for E-Discovery Violations

By Stephanie Robinson

In the latest chapter of the ongoing Qualcomm litigation, a federal judge has levied more than $8 million dollars in sanctions and referred attorney?s representing Qualcomm to the State Bar of California for e-discovery abuses. The sanctions are the culmination of a discovery dispute where, according to the court, counsel for Qualcomm tried to fend off allegations of noncompliance with the discovery rules by claiming that the client kept counsel ?in the dark? about the existence of more than 200,000 pages of critical e-mails and electronic documents that were not produced in discovery. The issues arose in a lawsuit between Qualcomm and Broadcom over sever patents dealing with the transmission of video data under the H.264 standard. In its August 6, 2007 decision, the United States District Court for the Southern District of California held that both of Qualcomm?s patents were unenforceable due to waiver based on Qualcomm?s conduct before the Joint Video Team (?JVT?), the standards-setting body that created the H.264 video standard. According to the court, the waiver issue turned on information about Qualcomm?s participation with the JVT that Qualcomm had originally not disclosed. The court found that Qualcomm had concealed ?over two hundred thousand pages of emails and electronic documents that were finally produced four months after trial containing direct evidence that multiple representatives of Qualcomm participated in the JVT from the beginning, and that multiple Qualcomm witnesses knew of this participation even as they testified to the contrary at deposition and trial.? The court issued an order to show cause regarding why sanctions should not be imposed against Qualcomm?s attorneys. After receiving submissions and hearing argument, the court granted in part and denied in part Broadcom?s motion for sanctions against Qualcomm. In its order, the court concluded ?that Qualcomm intentionally withheld tens of thousands of decisive documents from its opponents in an effort to win this case and gain a strategy business advantage over Broadcom.? With respect to Qualcomm?s lawyers, the court stated that ?Qualcomm could not have achieved this goal without some type of assistance or deliberate ignorance from its retained attorneys. Accordingly, the Court concludes it must sanction both Qualcomm and some of its retained attorneys.? The court rejected the notion that the experienced attorneys representing Qualcomm were entirely misled by Qualcomm?s attempts to hide documents and were therefore not culpable. ?It is inconceivable that these talented, well-educated, and experienced lawyers failed to discover through their interactions with Qualcomm any facts or issues that caused (or should have caused) them to question the sufficiency of Qualcomm?s document search and production.? In concluding that the lawyers bore some responsibility, the court found that in all likelihood, ?one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit.? The court specifically identified the lawyers it held responsible and declined to sanction others who did not significantly participate in the discovery violations or acted reasonably. The court imposed $8,568,633.24 in sanctions against Qualcomm referred the sanctioned attorneys to the State Bar of California ?for an appropriate investigation and possible imposition of sanctions.? The sanctioned attorneys were ordered to forward a copy of the court?s order to the state bar and directed them to participate in a comprehensive ?Case Review and Enforcement of Discovery Obligations? program. The saga of the Qualcomm case highlights the need for counsel to investigate the existence of responsive electronic information and not accept at face value a client?s representations regarding what is and is not available. Citation: Qualcomm, Inc. v. Broadcom Corporation, No. 05-CV-1958-B(BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).

Full post as published by Business and Technology Law on January 23, 2008 (boomark / email).